First of all, I would like to express our gratitude to the
Hon Holden Chow, the chairman of the Bills Committee of the
Apology Bill (“the Bill”) and all the members of the Bills
Committee for their contribution in respect of the scrutiny of the
Bill. In this regard, I would also like to thank the staff of the
Legislative Council who provided unfailing support to the Bills
Committee for working within a tight time table, and thus made it
possible to resume the Second Reading of the Bill within this
legislative session. Needless to say, I am also grateful to the
deputations and individuals for the constructive views they put
forward in relation to the Bill.
- As I pointed out when I introduced the Bill into this
Council in February this year, the objective of the Bill is to
facilitate the resolution of disputes by promoting and encouraging
the making of apologies by parties in disputes when they want to
do so by stating the legal consequences of making an apology.
Such disputes include disputes arising from medical negligence
and health care cases mentioned by a member at yesterday’s
debate. The Bill was formulated on the basis of the
recommendations made by the Steering Committee on Mediation
after two rounds of public consultation held in 2015 and 2016.
We also provided briefings to the Panel on Administration of
Justice and Legal Services in 2015 and 2016.
Committee Stage Amendments
- I shall move two Committee Stage Amendments
(“CSAs”) at a later stage. The CSAs, which have all been
endorsed by the Bills Committee, can be outlined as follows.
CSA to Clause 8(2)
- Clause 4 of the Bill defines an apology as an expression
of a person’s regret, sympathy or benevolence. If part of that
expression is an admission of the person’s fault or liability, or a
statement of fact, the admission or statement is also included in
the meaning of apology. Under clause 8(1) of the Bill, evidence
of an apology, including an accompanying statement of fact,
made by a person in connection with a matter is not admissible in
applicable proceedings as evidence for determining fault, liability
or any other issue in connection with the matter to the prejudice
of the person.
- Nevertheless, under the original proposed clause 8(2) of
the Bill, the decision maker of the relevant applicable
proceedings may exercise a discretion to admit a statement of fact
contained in an apology as evidence in the relevant proceedings if
there is an exceptional case and the decision maker is satisfied
that it is just and equitable to do so, having regard to all the
relevant circumstances. An example of such an exceptional case
is given in Clause 8(2) which is where there is no other evidence
available for determining an issue.
- Some members considered that the discretion of the
decision maker and in particular the words “all the relevant
circumstances” in clause 8(2) would give rise to uncertainties.
Some members took the view that this might deter people from
disclosing statements of fact when making apologies.
- We understand those views expressed by members. As a
matter of fact, the issues involved were studied in depth by the
Department of Justice and discussed thoroughly by the Bills
Committee. Having carefully considered the views expressed by
the members of the Bills Committee, and without unduly
restricting the discretion of the decision maker (as defined in the
Bill), we decided to propose CSA to clause 8(2). The effect of the
CSA is that if there is an exceptional case in the relevant
particular proceedings, the decision maker has to give regard to
the public interest or the interests of the administration of justice
in deciding whether it is just and equitable to exercise the
- We share the views of some members of the Bills
Committee that a decision maker would necessarily take into
account and consider all relevant circumstances in deciding
whether it is just and equitable to exercise the discretion having
regard to the public interest and the interests of the administration
of justice. The CSA in question is also in response to the views of
some members on the need for clearer guidelines for the exercise
of the discretion.
- We take the view that the above proposal would strike an
appropriate balance between achieving the policy objective of the
Bill on the one hand and safeguarding the interests of the
potential claimants on the other. While the objective of the Bill is
to encourage the making of sincere and meaningful apologies that
include statements of fact, this should not be achieved at the
expense of the parties’ fundamental rights to a fair hearing and to
secure a just resolution of disputes in accordance with their
substantive rights. If we were to remove the discretion altogether,
there is a real risk that the provision might become
unconstitutional and might in turn give rise to all sort of
- In the course of yesterday’s debate, I note that Dr Hon
Yiu Chung-yim suggested that there is an inconsistency between
the English version and the Chinese version of clause 8(2)
regarding the use of the expression “just and equitable”. We have
looked at the position and do not think that there is any
inconsistency. The Chinese expression “公正及公平”, which can
be found in the Chinese version of the Bill, has been used as the
Chinese equivalent of “just and equitable” in many of the local
- I also note that Hon Claudia Mo expressed concern about
the position of the “decision maker”. As defined in clause 8(4) of
the Bill, the expression “decision maker” is defined to mean the
person (whether a court, a tribunal, an arbitrator or any other
body or individual) having the authority to hear, receive and
examine evidence in the proceedings. Accordingly, the expression
“decision maker” does not mean just any person. Instead,
“decision maker” is the person who has the conduct of the
“applicable proceedings” (as defined in clause 6 of the Bill) and
who has the jurisdiction to decide on the question of evidence.
CSA to the Schedule
- Clause 6(1) sets out the proceedings to which the Bill is
applicable. Clause 6(2) provides that applicable proceedings do
not include criminal proceedings or proceedings specified in the
Schedule to the Bill.
- When the Bill was being considered, a question was
raised as to whether the Bill would apply to the proceedings of
the Legislative Council. Having regard to the constitutional role
and functions of the Legislative Council, we do not intend to
apply the Bill to the proceedings of the Legislative Council. To
avoid any unnecessary doubt, we decided to propose CSA to
expressly disapply the Apology Bill to proceedings of the
Legislative Council, including proceedings of its committees,
panels or subcommittees.
- The Bill is the latest initiative for implementing the
Government’s policy to encourage the wider use of mediation in
resolving disputes. Experiences and studies in other jurisdictions
demonstrate that apology legislation would facilitate settlement
of disputes and would thereby reduce hostile litigation. If and
when enacted, the Hong Kong SAR will be the first jurisdiction
in Asia to have apology legislation and the first jurisdiction
amongst the 56 common law jurisdictions that we have studied to
protect statements of fact in an apology legislation. This, we
believe, will help further enhance the Hong Kong SAR’s position
as a centre for international legal and dispute resolution services
in the Asia Pacific region, and hopefully will also bring about a
change in the dispute resolution culture.
- With these remarks, I urge Members to support the
passage of the Second Reading of the Bill and the amendments
that I will move at the subsequent Committee Stage.
Thank you, President.